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Corruption: Spurring China to Engage in International Law

April 1, 2009

Margaret K. Lewis

Margaret Lewis, a Senior Research Fellow at the U.S.-Asia Law Institute, is hopeful that China’s participation in United Nations Convention against Corruption (UNCAC) will gradually strengthen Beijing’s domestic anti-corruption efforts.

Corruption permeates deep into the daily lives of Chinese citizens. Even the seemingly simple act of buying a train ticket home for Chinese New Year is commonly thwarted by back-door dealings.1 If only the inability to buy a train ticket was the worst of China’s problems. As vividly evidenced by the uproar when schools collapsed in the devastating Sichuan earthquake while nearby government buildings were left unscathed,2 tempers are flaring across China in response to damaging acts of bald corruption. Widespread reports that local governments diverted aid funds after the earthquake further stoked the flames of public discontent.3 Yet the volatile situation on the ground in China presents an under-appreciated opportunity for greater participation in the international legal arena. As the Chinese government comes under increasing pressure from rising public discontent, Beijing is acutely aware that it must harness all available means to quell this outcry that could shake, or even dislodge, the Party’s grip on power.4 One such tool lies beyond China.

There is an international consensus “that corruption is no longer a local matter but a transnational phenomenon that affects all societies and economies, making international cooperation to prevent and control it essential.”5 Last year at a meeting of Member States to the United Nations Convention against Corruption (UNCAC or the Convention), the head of the delegation from China reaffirmed his country’s “determination to faithfully implement the Convention, resolutely combat corruption and maintain the common interest of mankind.”6 China was an early and enthusiastic proponent of UNCAC, a young convention that entered into force less than four years ago. Looking now to UNCAC’s future, as a rising power and country plagued with endemic corruption, China is a key player in the fight to address corruption on a global scale.

Beyond the specific issue of corruption, China’s participation in UNCAC is but one aspect of the larger story of China’s growing interaction with international legal regimes.7 In this issue of China Rights Forum that is focused on the rule of law in China, it is important also to take stock of how domestic legal developments are intertwined with events outside China’s borders. Admittedly, the relationship between international legal norms and China’s laws and policies is often fraught with tension, as highlighted by the recent review of China’s human rights practices by the UN Human Rights Council.8 The debate surrounding China’s relationship With international law has placed deserved emphasis on human rights, most notably China’s continuing failure to ratify the International Covenant on Civil and Political Rights, which it signed in October 1998. While not diminishing the importance of international human rights obligations, it is helpful to take a more holistic view and explore how China’s practices with respect to other areas of international law can present fruitful avenues for cooperation. UNCAC presents such an opportunity.

This article introduces China’s participation in international anti-corruption efforts by focusing on UNCAC. It argues that, in light of the congruence of UNCAC’s aims with the Chinese government’s domestic concerns, UNCAC presents an advantageous two-way street. Going one direction, China is poised to serve an active, constructive role in the Convention’s future. In the opposite direction, China’s engagement in UNCAC is stimulating domestic legal initiatives that have the potential to benefit its citizens.

UNCAC: A Global Response to Corruption

Open for signature in 2003 and in force since December 2005, UNCAC now has 131 Member States.9 It is the first global convention to tackle corruption,10 though it is interesting that the term “corruption” itself was left undefined. What is clear is that UNCAC targets the use of public office for private gain. The Convention includes only non-mandatory provisions regarding corruption entirely within the private sector.11

Last year at a meeting of Member States to the United Nations Convention against Corruption (UNCAC or the Convention), the head of the delegation from China reaffirmed his country’s “determination to faithfully implement the Convention, resolutely combat corruption and maintain the common interest of mankind.”

The issue of implementation proved too contentious for initial negotiations, resulting in a decision to defer it to a later day through UNCAC’s Conference of the States Parties (CoSP), the formal mechanism by which representatives of Member States come together to discuss the Convention, facilitate cooperation, and make recommendations to improve the Convention.12 Implementation remains a hotly contested issue today.

The CoSP is struggling with a fundamental disagreement among Member States. The Group of 7713 developing countries and China firmly oppose any review beyond self-assessment by the concerned government itself, while Western countries tend to advocate a more expansive and vigorous approach that may include peer and expert review. Implementation challenges are common to multilateral conventions, but the decision to first ratify and only then inject review mechanisms left a hole in UNCAC that remains unfilled.14 Any Member State that dislikes a proposal for heightened review can block its insertion, and other Member States must find means of persuading the objecting country to change its stance. Further complicating matters, the large number of diverse members makes the search for ex-post consensus particularly difficult under UNCAC.

China has consistently stressed a gradual approach, with implementation proceeding step-by-step based on accumulated experience.15 This cautious stance is consistent with China’s unrelenting insistence on a strict interpretation of state sovereignty,16 which finds explicit support in the text of UNCAC.17 Of particular concern to China is that implementation mechanisms do not become a tool for interference in domestic affairs.18 Certainly, China’s experience with a visit by the UN Special Rapporteur on Torture in 2006 as part of its obligations under the United Nations Convention Against Torture does not bode well for its acceptance of future review mechanisms that it deems as having an invasive nature.19

China is not flouting the terms of UNCAC, nor is there evidence that China committed to the treaty with little or no intent to comply. China has amended its criminal laws, introduced new legislation, and established a national anti-corruption body, all of which were done with reference to UNCAC.

But it is important to distinguish China’s resistance to more vigorous implementation mechanisms from a broader disregard for UNCAC’s requirements. China is not flouting the terms of UNCAC, nor is there evidence that China committed to the treaty with little or no intent to comply. China has amended its criminal laws, introduced new legislation, and established a national anti-corruption body, all of which were done with reference to UNCAC.20 China is also active in other multilateral and bilateral anti-corruption efforts, and the president of the International Association of Anti-Corruption Agencies (IAACA) is Chinese.21


Where does UNCAC stand today? At the 2008 CoSP session, NGO participants, spearheaded by Transparency International,22 issued strong appeals for the CoSP to establish stronger review mechanisms: “Anything less would undermine the credibility of UNCAC and play into the hands of the skeptics who question the UN’s capability to make this complex convention work.”23 Despite lengthy meetings, the thousand-plus delegates failed to agree on a concrete review mechanism beyond self-assessment.24 They instead settled on a broadly worded resolution that welcomed the development of a self-assessment checklist but deferred a decision on other review mechanisms for a later day.25 An interim working group continues to tackle the issue, with the next full CoSP session scheduled for late 2009 in Qatar.

Notwithstanding vocal opinions to the contrary, the lack of concrete implementation mechanisms does not mean that UNCAC is dead in the water, at least with respect to China. Indeed, as discussed below, there is substantial reason for optimism because of the congruence of UNCAC’s aims with the Chinese government’s concerns.

China and UNCAC: A Two-Way Street

China’s resistance to more robust implementation mechanisms is coupled with receptiveness to UNCAC’s overarching goal of combating corruption. Put simply, China does not want to air its dirty laundry to the world, but it does want help washing it.

On the one hand, China is concerned that a searching review process could unearth even greater fault lines and provide increased fodder for domestic discontent. The government quickly cracks down on public exposés of corruption, presumably to forestall an escalation in protests, as seen in the cases of Zheng Enchong,26 Chen Guidi, and Wu Chuntao,27 and Lü Gengsong,28 among others. Thus, while Chinese delegates to UNCAC’s meetings have emphasized cooperation, this rhetoric must be viewed within the sovereignty-based parameters that constrict interaction.29

On the other hand, China has strong incentives to play a prominent role in the Convention’s development.30 Beijing’s immediate hopes for UNCAC are clear: the return of assets and fugitives fleeing overseas.31 Lai Changxin, who allegedly masterminded a multi-billion dollar smuggling operation in cooperation with local officials before fleeing to Canada, may be the most notorious, but he is far from the only one.32 Successful recovery of people and assets both provides the government with positive publicity and deters potential fugitives who see escaping abroad as a way to avoid detection and punishment in China.

In addition to recovering people and money from overseas, UNCAC appears to be spurring action within China. For example, the National Bureau of Corruption Prevention was announced as having been established to comply with the Convention.33 The Bureau inaugurated a government website to publicize its policies and events, as well as to provide anti-corruption news from both China and abroad.34 The website also included an interactive feature that allowed ordinary citizens to post notes or write emails with opinions on the government’s work. This created a new mechanism for the central government to collect grievances directly, thus bypassing local authorities. The site famously crashed on its debut under the weight of citizens’ complaints.35

Beijing’s immediate hopes for UNCAC are clear: the return of assets and fugitives fleeing overseas.

Despite China’s incentives to support UNCAC, it bears emphasizing that the government’s unwillingness to relax its tight grip on civil society defies its obligations under UNCAC “to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption….”36 For instance, Transparency International and other NGOs have participated at CoSP meetings, though they are not allowed unfettered access and are excluded from some meetings within the CoSP framework.37 In China, however, even NGOs involved in less incendiary issues than corruption are strictly controlled, if they are allowed to operate at all.38 Tellingly, for all three years that China has submitted reports to the ADB/OECD Anti-Corruption Initiative, the report is blank under the heading “Public Participation: Encouraging public participation in anti-corruption activities.”39

Going forward, while we cannot expect China to take a leading role in demanding more rigorous oversight of implementation, we can realistically hope that China’s regular, substantial interactions with its UNCAC peers will gradually strengthen Beijing’s anti-corruption efforts. International training programs, technical assistance, and other initiatives under UNCAC have the potential to improve domestic laws and institutions. At the risk of sounding like a Pollyanna, perhaps, in time, the broader effects of these efforts will curtail practices that led to shoddy, “tofu dreg” (doufuzha [豆腐渣]) buildings in Sichuan and will make it easier to get a train ticket home for Chinese New Year.


This Article grew out of a presentation at the Inaugural Asian Society of International Law Young Scholars Workshop held at the National University of Singapore in September 2008.

1. See Barbara Demick, “Chinese Seeking Rail Tickets Find Mostly Graft,” Los Angeles Times, January 26, 2009, A1. ^

2. See William Foreman, “China Shushes Parent Protesters about Earthquake,” Associated Press, July 8, 2008, (describing tactics to silence parents “who believe that nearly 7,000 classrooms crumbled so easily because corrupt and incompetent officials didn’t build them properly”). ^

3. See Don Lee, “Protests Flare over Quake Aid in China,” Los Angeles Times, May 29, 2008, A6 (“‘The government was corrupted, so ordinary people were all protesting,’ said Yang, a 13-year-old student who left her family store nearby to participate [in post-quake protests].”); Josephine Ma, “Auditors Monitor Charities to Allay Fears of Corruption in Beijing,” South China Morning Post, May 31, 2008, 4 (reporting “public fears of corruption and misuse of the tens of billions of yuan pouring in for earthquake relief”). ^

4. See, e.g., Edward Cody, “Chinese Flood Corruption Web Site,” Wall Street Journal Asia, December 20, 2007, 11. (“The party’s senior leaders, including President Hu Jintao, have identified official malfeasance as one of China’s most worrisome problems, warning that so many people are becoming alienated that the party’s hold on power could be threatened.”) ^

5. United Nations Convention against Corruption (UNCAC), G.A. Res. 58/4,U.N. GAOR, 58th Sess., U.N. Doc. A/RES/58/4 (December 11, 2003), preamble, also available at International Legal Materials 43 (2004), 37. ^

6. Wu Dawei [武大伟], “Wu Dawei fubuzhang zai lianheguo fanfubai gongyue di er ci diyueguo huiyi shang de fayan” [武大伟副部长在《联合国反腐败公约》第二次缔约国会议上的发言], Ministry of Foreign Affairs [外交部], January 28, 2008, China signed UNCAC on December 10, 2003, and ratified it on October 27, 2005. Ministry of Foreign Affairs [外交部], “Lianheguo fanfubai gongyue” [联合国反腐败公约], April 8, 2008, ^

7.See Pitman B. Potter, “China and the International Legal System: Challenges of Participation,” China Quarterly 191 (September 2007), 699–715 (“China’s participation in international legal regimes has increased substantially in the past ten years.”); Jacques DeLisle, “China’s Approach to International Law: A Historical Perspective,” American Society of International Law Proceedings 94 (2000), 267–275, at 274. (“[China] has become more active as a participant in important organs of the international legal order. . . .”)^

8. China’s human rights record underwent the Universal Periodic Review (UPR) at UN Human Rights Council in Geneva, February 9–11, 2009. See UN Human Rights Council, “Draft Report of the Working Group on Universal Periodic Review: China,” U.N.Doc.A/HRC/WG.6/4/L.11 (2009); Human Rights in China, “China Rejects UN Recommendations for Substantive Reform to Advance Human Rights; HRIC Summary,” February 11, 2009, ^

9.See UNCAC signature/ratification status, available at UN Office on Drugs and Crime,  ^

10. Other agreements of more limited geographic and/or substantive scope include: the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, International Legal Materials 37 (1998), 1; Inter-American Convention Against Corruption, International Legal Materials 35 (1996), 724; Council of Europe Civil Law Convention on Corruption, European Treaty Series No. 174, November 4, 1999; and Council of Europe Criminal Law Convention on Corruption, European Treaty Series No. 173, January 27, 1999, also available at International Legal Materials 38 (1999), 505. ^

11. UNCAC, supra n. 5, arts. 21–22. ^

12. According to Article 63 of the Convention, the CoSP was established “to improve the capacity of and cooperation between States Parties to achieve the objectives set forth in this Convention and to promote and review its implementation.” The Convention further calls for regular meetings, the first of which was held within a year of entry into force. There have been two sessions (2006 and 2008) with the third scheduled for November 2009. In addition, the CoSP has established various working groups on specific issues. See UNCAC, supra n. 5, art. 63; U.N. Office on Drugs and Crime, “Working Groups Established by the Conference of States Parties,” ^

13. See the website of the Group of 77 at the United Nations. It is unclear to what extent the members of the Group of 77 (G-77) maintain a unified position against more robust review mechanisms. Despite anecdotal reports of internal disagreements, the G-77’s public stance has been one of firm resistance. ^

14. Efforts thus far have focused on self-assessment, including establishing of a self-assessment checklist to facilitate the provision of information. See Conference of the States Parties to the United Nations Convention against Corruption, Resolution 1/2, “Information-gathering mechanism on the implementation of [UNCAC],” December 14, 2006, ^

15. Li Jinzhang [李金章], “Zhongguo daibiaotuan tuanzhang, waijiaobu fubuzhang Li Jinzhang zai lianheguo fanfubai gongyue di yi ci diyueguo huiyi shang de fayan” [中国代表团团长、外交部副部长李金章在《联合国反腐败公约》第一次缔约国会议上的发言],Ministry of Foreign Affairs [外交部], December 10, 2006, ^

16. See, e.g., “ Lianheguo fanfubai gongyue di er ci diyueguo huiyi kaimu” [《联合国反腐败公约》第二次缔约国会议开幕], Xinhua News Agency [新华社], January 29, 2008, (statement by head of Chinese delegation that cooperation must be premised on respect for sovereignty); Lin Ligong [林立公], “Shiliuda yilai zhongguo kaizhan de fanfubai guoji hezuo” [十六大以来中国开展的反腐败国际合作], Socialism Studies [社会主义研究], no. 3 (2007), 99, 101 (article in Chinese academic journal advocating that states cannot use punishing corruption as reason to harm another state’s sovereignty). ^

17. UNCAC, supra n. 5, art. 4 (“States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.”). ^

18. See Permanent Mission of the PRC to the United Nations and Other International Organizations in Vienna, “The proposal by the People’s Republic of China on the terms of reference of a review mechanism of the United Nations Convention against Corruption” [中国关于《联合国反腐败公约》履行审查机制职责范围的建议], No. CPMV/UN/2008/18, ^

19. See UN Commission on Human Rights, “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak—Mission to China,”U.N.Doc. E/CN.4/2006/6/ Add.6 (March 10, 2006). See also official PRC response at “Foreign Ministry Spokesman Qin Gang’s Press Conference on 6 December 2005,” (“China cannot accept the conclusion that ‘torture is widespread.’ . . . [W]ithin short two weeks and a trip to only three cities, the rapporteur jumped into a conclusion, which is ill-grounded on the part of facts and does not conform to reality.”). ^

20. See, e.g., Li Changdao [李昌道], “‘Lianheguo fanfubai gongyue’ jiexi” [《联合国反腐败公约》解析], Fudan Xuebao (Shehui Kexue Ban) [复旦学报(社会科学版)], no. 4 (2006), 111, 115–17 (article in Chinese academic journal Describing main ways in which UNCAC promotes China’s anti-corruption efforts as establishing international legal basis for stopping fleeing corrupt officials and perfecting domestic anti-corruption laws); National Bureau of Corruption Prevention of PRC [国家预防腐败局],”Zhongguo shishi lianheguo fanfubai gongyue jiben qingkuang” [中国实施《联合国反腐败公约》基本情况], January 9, 2008, (posting on PRC National Bureau of Corruption Prevention website describing steps taken by China to implement UNCAC); “Amended Law to Target Corrupt Officials At Large,” People’s Daily, July 26, 2007, (quoting PRC official that “Despite some differences, the formulation or revision of Chinese domestic laws will follow [UNCAC] because China is a signatory country . . . .”). ^

21. “Uniting against Graft,” China Daily, October 27, 2006, 4 (highlighting election of China’s procurator-general as president of IAACA, “which demonstrates recognition of China’s steady progress in cleaning up its government”). China has attended meetings of the OECD Working Group on Bribery as an observer. See ADB/OECD Anti-Corruption Initiative for Asia and the Pacific, Combating Corruption in Asia-Pacific: P.R. China’s measures to Implement the Anti-Corruption Action Plan for Asia-Pacific (2007), 9, [hereafter ADB/OECD Initiative Report]. (“P.R. China dispatched delegations to the International Anticorruption Conference, the World Forum to Combat Corruption and Build a Clean Government, the World Forum to Government Reforms, the first session of the Conference of States Parties of the UNCAC, and APEC anti-corruption workshops.”) ^

22. Transparency International is a global civil society organization with a mission to create change towards a world free of corruption. See the website of Transparency International. The organization is probably best known for its annual Corruption Perceptions Index that ranks 180 countries by their perceived levels of corruption. ^

23. Transparency International, Effectively Monitoring the United Nations Convention against Corruption (UNCAC), Policy Position #01 (2008), 2, ^

24. Matti Joutsen, “Corruption with Chinese Characteristics: How Should the International Community Respond?” (paper presented at the Council on Foreign Relations, New York, April 3, 2008 [Director, International Affairs, Ministry of Justice of Finland] [on file with author] [describing meeting as “a week of mammoth sessions, one of which lasted until two o’clock in the morning”]). ^

25. See Conference of the States Parties to the United Nations Convention against Corruption, Resolution 2/1, “Review of Implementation,” February 1, 2008, ^

26. Zheng, a Shanghai lawyer, was jailed for three years for “leaking state secrets” after revealing corrupt dealings of top Shanghai leader Chen Liangyu. See “Analysis: Doubts Voiced Over China’s Anti-corruption Resolve,” BBC Monitoring Asia Pacific, October 25, 2006 (report that Zheng was jailed for three years for “leaking state secrets” after revealing corrupt dealings of top Shanghai leader Chen Liangyu). ^

27. In 2004, Chen and Wu published a book titled An Investigation of China’s Peasants that documented widespread rural corruption. As explained by one book reviewer, “After initially allowing circulation of the book, Beijing recognized the volume’s explosive impact, changed gears and banned it, thus continuing a tradition of pretending problems don’t exist or blaming them on the messengers.” Steven Mufson, “Let a Thousand Tyrants Bloom,” Washington Post, September 10, 2006, T4. ^

28. In early 2008, Lu, a prolific writer and activist, was convicted and sentenced to four years in prison for “inciting subversion of state power” after penning essays that exposed corruption. See Evan Osnos, “In China, Uncovering Crime Is Also One,” Chicago Tribune, January 30, 2008, 8. ^

29. See, e.g., “Fanfubai gongyue diyueguo Bali dao gongshang duice” [反腐败公约缔约国巴厘岛共商对策], Procuratorial Daily [检察日报], January 30, 2008, ^

30. Joutsen, supra n. 24, at 1. (“But one delegation–the delegation of China–played a key role in the background. The Chinese representative had little to say during the negotiations in the room, but was closely listened to when he did.”) ^

31. See “China ratifies UN Convention on Corruption by Unanimous Vote,” BBC Monitoring Asia Pacific, October 27, 2005 (quoting foreign affairs official that UNCAC “will provide a strong international legal basis for China to overcome the difficulties in investigating, extraditing criminal suspects of corruption and recovering Chinese assets. . . .”); Ren Guanghao [任广浩], “Fanfubai guoji hezuo falü wenti tanxi—jiantan zhongguo dui lianheguo fanfubai gongyue de yingdui” [反腐败国际合作法律问题探析——兼谈中国对《联合国反腐败公约》的应对], Hebei Law Science  [河北法学] 22, no. 10 (October 2004), 25, 27–29 (describing most pressing issues for anti-corruption international cooperation as extradition, asset recovery, and dividing illicit gains). ^

32. See “China Vows to Deepen International Cooperation in Corruption Fight,” Xinhua News Agency, June 13, 2006, ^

33. “China Appoints Head of Corruption Prevention Bureau,” China Daily, September 7, 2007, (“The news of setting up such a new anti-corruption agency was first released by Gan Yisheng, spokesman for the [CCDI] of the [CCP], early this year.”) ^

34. See “China’s Corruption Prevention Bureau Launches Official Website,” People’s Daily, December 18, 2007, ^

35. See “Anti-corruption Website Crashes on First Day,” China Daily, December 20, 2007, (reporting that website “crashed on Tuesday, just hours after its launch, as droves of people logged on to complain about corruption among officials”); “Anti-corruption Website Breakdown as Masses Log On,” Shanghai Daily, December 19, 2007, (subscribers only). ^

36. See UNCAC, supra n. 5, art. 13. The provisions in UNCAC regarding public involvement have not gone unrecognized in China, but the question remains how to implement these requirements. For example, an article on UNCAC in Party Construction (党建) recognizes UNCAC’s call for civil society involvements but explains that there is a certain degree of difficulty (“有一定难度”) with respect to the provisions on freedom of information. Cai Xiao [蔡晓], “Lianheguo fanfubai gongyue jiben qingkuang yiji dui woguo xiangguan gongzuo de yingxiang” [《联合国反腐败公约》基本情况以及对我国相关工作的影响], Dangjian [党建], December 2005, 34, 35. It is unclear how the government intends to overcome these “difficulties.” ^

37. Transparency International and a broader Coalition of Civil Society Friends of UNCAC attended the UNCAC CoSP sessions. Notably, no China-based group is a member. See Coalition of Civil Society Friends of UNCAC, “UNCAC Civil Society Statement to the First Conference of the States Parties” (December 10–14, 2006, Amman, Jordan), 4, available at Transparency International has no chapter in China but lists the “Anti Corruption and Governance Research Center” at Tsinghua University as its “national contact.” See Transparency International national contact for China, ^

38. See Eva Pils, “Asking the Tiger for his Skin: Rights Activism in China,” Fordham International Law Journal 30 (2007), 1209–87, 1210. (“Despite remarkable successes in the past twenty-seven years of reform, Chinese law and civil society remain weakened by party and personal autocracy. . . .”) ^

39. ADB/OECD Initiative Report, supra n. 21, at 12. Launched in 1999, the Anti-Corruption Initiative for Asia-Pacific is under the joint leadership of the Asian Development Bank (ADB) and the Organisation for Economic Co-operation and Development (OECD). The 28 member countries and economies of the Initiative have jointly developed an action plan of standards for sustainable safeguards against corruption for use in the region. The OECD is composed of 30 countries that are “committed to democracy and the market economy.” The OECD’s mission is to provide “a setting where governments compare policy experiences, seek answers to common problems, identify good practice and coordinate domestic and international policies.” See Organisation for Economic Co-operation and Development, “About OECD,”,3417,en_36734052_36734103_1_1_1_1_1,00.html. ^

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